Alabama Great Southern R. Co. v. Fulton

• Decision Date: 09 February 1905
• Citation: 144 Ala. 332,39 So. 282
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. FULTON.
• Court: Alabama Supreme Court

39 So. 282

144 Ala. 332

ALABAMA GREAT SOUTHERN R. CO. v. FULTON.

Supreme Court of Alabama

February 9, 1905

Appeal from City Court of Bessemer; B. C. Jones, Judge.

Action by James A. Fulton against the Alabama Great Southern Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

As amended the complaint contained 10 counts. The court gave the general affirmative charge as to all of these counts, with the exception of the fourth and tenth.

The fourth count, as last amended, was in words and figures as follows: "The plaintiff claims of the defendant the further sum of $10,000 as damages, for that heretofore, on to wit, 17th day of October, 1901, defendant was running or operating a certain locomotive engine and a train of cars upon and along a line of railway at or near Bessemer, in Jefferson county, Ala.; that said railway was intersected at a point near the said Bessemer by a public highway or a thoroughfare much used by pedestrians and vehicles at and about said point of intersection; that on said date plaintiff was traveling along and upon said highway or thoroughfare in a vehicle drawn by a mule, and was near said point of intersection, expecting to cross said railway at said point but before making the attempt plaintiff stopped said vehicle to ascertain whether there was danger of colliding with any locomotives that might be passing along and upon said railway, and discovered not far distant from said point of intersection, and about to be propelled in that direction defendant's said locomotive and train of cars; that the engineer or some one in charge of said locomotive caused the same to be propelled along and upon said railway in the direction of said crossing, and at short intervals caused escapes or emissions of large quantities of steam or other substance from said locomotive, and caused the driving wheels thereon to be violently whirled or revolved around or upon the rails of said railway, all of which produced or caused to be made great noises, at which said mule became much frightened and agitated. And plaintiff further avers that the engineer or other person in charge of said engine, at or about the time of or just before reaching the point where plaintiff was, with great recklessness and negligence unnecessarily caused the steam to escape from the said engine, or the whistle thereof to be sounded, which was calculated to frighten a mule of ordinary gentleness, the sight and noise of which frightened said mule, and caused him to run away with the said vehicle, and the plaintiff was thereby thrown therefrom, or, in an effort to escape from the same, was violently thrown to the ground, and severely injured; that his flesh was torn, bruised, and mangled, and he was otherwise injured. In consequence thereof, plaintiff was made sore and sick, and suffered great mental anguish and physical pain, and was for a long time rendered wholly unable to work, and was permanently injured, and was put to great expense and trouble in and about procuring medicine, medical attention, care, and nursing, in an effort to cure and heal his said wounds and injuries."

The tenth count, as last amended, after containing substantially the same prefatory averments as did the fourth count, above set out, then contains the following averments: "That at or just about the time said vehicle was stopped plaintiff discovered defendant's said engine, which was not far from said crossing or intersection, and which was at the time being about to be propelled along said railway toward said point of intersection; that about the time said engine was opposite, or just before the same reached the point opposite where plaintiff was, the said mule became frightened at the said engine, or the noises made thereby or emanating therefrom, or the sight thereof, which was known to the defendant, or by the exercise of ordinary care could have been known, yet after such knowledge or notice the defendant's engineer or other employé in charge of the said engine negligently caused or allowed large quantities of steam or other substance to be unnecessarily emitted therefrom, or the whistle thereof to be sounded, or negligently caused or allowed the driving wheels of said engine to be violently revolved, thus causing or producing unnecessary or unusual noises, which was calculated to frighten a mule of ordinary gentleness, and as a proximate consequence thereof said mule did run away, and the plaintiff was thrown violently to the ground and run upon by a wheel of said vehicle, and dragged a long distance, and his flesh was bruised, mangled, and torn, and he was otherwise injured; and as a result he was made sore and sick, and suffered great mental and physical pain, and was for a long time rendered wholly unable to work and earn money, and was permanently injured, and was put to great expense and trouble in and about procuring medicine, medical attention, care, and nursing, in and trying to heal and cure his said wounds and injuries, all to his damage in the sum of $10,000. Wherefore he sues."

To the fourth count of the complaint, as amended, the defendant demurred upon the following grounds: (1) For that said count shows that the negligence complained of did not contribute to the injury and damage alleged. (2) For that said count does not aver or show that any wrong or negligence of the defendant was the proximate cause of the accident and injury complained of. (3) For that said count fails to allege or show that the acts complained of were calculated to frighten a mule of ordinary gentleness. (4) For that said count shows that plaintiff was a licensee, and yet claims damages for simple negligence. (5) For that said count shows that plaintiff was a bare licensee and yet claims damages for simple negligence. (6) For that said count shows on its face that the only duty defendant owed plaintiff was not to wantonly or intentionally injure him, and yet it claims damages for simple negligence. (7) For that said count states no cause of action against this defendant, in that it does not show wherein defendant violated any duty it owed the plaintiff. (8) For that said count states no cause of action in this: that it does not allege or show that the emissions of steam or the blowing of the whistle were wantonly done, or done with intent to frighten plaintiff's mule. (9) For that said count is indefinite and uncertain, in that it does not show this defendant whether it is called on to defend an action for causing steam to be emitted, or whether it is the blowing of a whistle that is relied on by plaintiff. (10) For that negligence is alleged in the disjunctive. (11) For that said count shows that there was no negligence or breach of duty on the part of the defendant and yet denominates the same as negligence. (12) For that in said count negligence is averred merely as a conclusion of the pleader.

The demurrers to the tenth count were as follows: (1) Defendant assigns...